One of the most frequent criminal charges people are charged with is DUI. In Illinois the penalties are stiff. Up to one year in jail, fines up to $2,500.00 and loss of license up to one year. A repeat violator faces much more severe penalties. Up to 30 years in prison (multiple repeaters) is technically the worst penalty. Loss of driving privileges for three years without the ability to obtain a driving permit (2nd or more time violators who refuse to submit to a breath/blood/urine test).
The system is set up against the offender. If he/she chooses to contest the Statutory Summary Suspension (which he/she should do) the burden of proof is on the offender. Just the opposite from the criminal charge, where the State has the burden of proof. If the defendant waits too long (more than 90 days after receiving the Notice of Suspension) they lose all rights to the hearing. Lastly, the law allows the court to consider evidence contained in the Notice of Suspension. Normally, that evidence would be considered hearsay and be inadmissible as evidence. So from the very beginning, the DUI defendant has an uphill battle towards rescission of the SSS. It also seems in many counties that the judges simply don't want to rescind the SSS. I've conducted hearings with facts that would have resulted in a rescission where the judge ruled against my client.
The best way to position my clients for a SSS rescission is to immediately demand all discovery they are entitled to. Recently, the Illinois Supreme Court ruled in a case titled People v. Kladis that the trial judge can impose sanctions against the State where evidence is destroyed. In many DUI cases there exists video footage. The dashcam evidence is corrupted or destroyed frequently. By forcing the State to produce such evidence you preserve your client's rights. If the State discovers they don't have a legible copy or the video is lost they will most often concede to a rescission. If the State doesn't concede I file a motion for sanctions against the State. In a few recent cases the Illinois State Police failed to preserve the dash cam footage. I was able to obtain a rescission of my client's SSS. I have filed many sanctions motions based upon this issue. Most of the time I prevail and my client keeps their license.
Another issue that is very important when representing DUI clients is to force the State to turn over all relevant certifications. If there is a test of any type there has to be a certificate. For instance, in a breath test both the machine and officer must be certified in accordance with regulations. There exists a printed certificate for the officer and there is a log book entry for the breath machine. The same rule applies to PBTs (Portable Breath Testers) which are commonly used on scene. An interesting fact regarding PBTs is that oftentimes the arresting officer advised the subject that "this won't be used against you in court." In such a case I routinely argue that evidence must be suppressed. Normally, PBT results are not per se admissible. However, I believe the fact that the officer alludes to a client's failure of a PBT test must be kept out as evidence. The natural presumption is that the client's BAC is over the legal limit in those cases. By keeping that information out of the evidence it improves a client's chance at success during the SSS rescission hearing.
Clients have a right to the SSS hearing within 30 days of filing their Petition to Rescind. I prefer to enforce their rights to this speedy hearing. There are times when I cannot though. If I am missing evidence that is required prior to the hearing I will continue the hearing date beyond the 30 day limit. I make sure to advise the judge ahead of time if the reason for an extended hearing is due to the State's failure to comply with my client's discovery requests.
If a client wins their Petition to Rescind hearing they do not suffer a suspension. They are not required to pay the reinstatement fee of a minimum of $250.00 and don't need a Breath Alcohol Ignition Interlock Device (BAIID). Adding up all the benefits of a rescission totals over $1,000 saved for a 1st time breath submission case. The benefits total almost $2,000 for a 1st time refusal case. And, another benefit is that if my client wins the SSS hearing they typically win the DUI. Most of the issues are similar for both hearings. Given the fact that the burden is on my client to win the hearing the State will realize they cannot prevail in the criminal case since the burden is upon them in that scenario. The four issues one may address during the SSS hearing are:
1. Did the officer have "reasonable grounds" to conduct the traffic stop.
2. Did the officer have "probable cause" to arrest my client for DUI.
3. Did the officer read the Warning to Motorist to the client after being arrested for DUI.
4. Did the client submit to or refuse the breath, blood, or urine test?
Errors during paperwork completion are common. The law allows an officer to correct what is termed a "scrivener's error" meaning a harmless mistake (like misspelling a word). Careful review of all paperwork most often reveals such mistakes. When times are botched or notice dates incorrectly labelled the deficiencies can result in a rescission. There are four copies of every piece of paper. I have had cases where the officer's copy differs from the court's copy. In those cases it is important to raise the issue with the judge.
Even in cases where the paper discovery looks like the officer did everything correctly it is not a waste of time to conduct the SSS hearing. I have conducted hundreds of hearings. In many of them I am able to elicit testimony from the officer that results in not only outright victories for my client in the SSS hearing but assists me in negotiations when it comes time to work out the DUI charge. If an officer testifies poorly, has bad memory, did not follow the National Highway and Transportation Safety Board rules on administering standardized field sobriety tests, it results in the judge ruling no probable cause to arrest. It also helps me reach a beneficial resolution for the DUI. I have examined field training officers who are supposed to be able to train other officers on administration of SFSTs that do not administer them properly.
When creating a defense strategy for the DUI itself it is important to evaluate the strength and weaknesses of your case. Again, you can win the DUI if there is insufficient facts for the officer's initial stop of the vehicle. A motion to suppress evidence based upon my client's Fourth Amendment right against unreasonable search and seizure is sometimes used. I recently won a case for a client who was stopped by a Troy Police Department officer for a claimed violation of Failure to Dim Headlights. We presented the video in court and the judge ruled in her favor.
Regardless if the issue is the DUI or SSS there are similar issues that can result in a rescission or dismissal. It is important to rely on skilled and experienced defense attorney's in these situations.